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The United States hereby requests that the Court deny the Motion by Defendant Smith for
Discovery (Docket # 51) and Defendant B&H's Motion for Discovery (Docket # 43) because all
materials requested by the Defendants are either: (1) already in Defendant's possession; (2) not
in the possession, custody or control of the United States; or (3) internal memoranda created by
the attorneys for the United States, not subject to disclosure pursuant to Federal Rule of Criminal
Procedure 16(a)(2).(1)

BACKGROUND INFORMATION AND SUMMARY OF DISCOVERYPROVIDED BY THE UNITED STATES TO DEFENDANTS

The Indictment in this case, which charges Defendants B&H Maintenance &
Construction, Inc. ("B&H"), Jon Paul Smith ("Smith"), and Landon R. Martin ("Martin") with
one count of violating Section One of the Sherman Act, 15 U.S.C. § 1, by rigging bids for the
construction of natural gas pipelines submitted to BP America Production Company ("BP
America"), and further charges Smith with one count of witness tampering in violation of 18
U.S.C. §1512(b), was returned on March 13, 2007.

The United States has more than complied with its discovery obligations under Federal
Rule of Criminal Procedure 16, its obligations to disclose evidence favorable to Defendants as
required by Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150
(1972); and United States v. Bagley, 473 U.S. 667 (1985), and the Discovery Conference Orders
(Disc. Conf. Memo. and Order (Dockets # 23, #24, and #25)), and will continue to do so.

Significant information was provided to the Defendants well in advance of
Indictment. On December 18, 2006, the United States provided Defendants with
documents relating to five of the nine projects on which rigged bids were
submitted to BP America by B&H and Flint Energy Services Inc. ("Flint")(2) as well
as the names of five individuals who confirmed various aspects of the information
the United States had received from Defendants' individual coconspirator,
Kenneth L. Rains ("Rains"). On January 19, 2007, the United States provided
Defendants with the FBI 302 memorandum of interview of Rains, with attached
documents, and FBI 302s or paralegal notes of interview for the five individuals
previously identified as confirming information provided by Rains.

On March 22, 2007, the date of the Defendants' initial appearance, the United
States produced the FBI 302s of the interviews of Defendants Smith and Martin,(3)
and the remaining FBI 302s and paralegal notes of interviews in its possession at
that time. The United States also produced an index of the materials.

Discovery Conferences were held on April 17, 2007. The United States was
ordered to produce Federal Rule of Criminal Procedure 16 discovery materials to
the Defendants by May 1, 2007. On April 25, 2007, exceeding its obligations
under Rule 16(a), the United States produced to each of the three Defendants:
three additional FBI 302s, the paralegal notes of interviews of Smith and Martin,
and electronic media containing materials produced by various companies
(including Flint, the corporate coconspirator, and BP America, the victim), and
individuals during the course of the grand jury investigation. A copy of paper
documents produced by B&H's parent company InfrastruX, was sent to the offices
of B&H's counsel to be shared, as necessary, by the three Defendants.(4) Indexes
and updated indexes were included with the production.

Therefore, Defendants' motions for additional discovery should be denied.

The United States has already provided the Defendants with copies of the bid documents
and bid histories that Defendant Smith requests in his Discovery Request Number One (Mot. by
Smith for Disc. ¶¶ 2, 3 (Docket #51)).(6) In addition to the documents themselves, the United
States has also provided the Defendants with indexes to: the documents; the FBI 302s and
paralegal notes of interviews; and the miscellaneous materials it produced to the Defendants. Bid
documents submitted for the BP America projects where B&H and Flint bid against each other,
including the Webb Reader project, are included in the documents produced to the Defendants.
Any bid histories produced to the United States by BP America, Flint or B&H are also in the
Defendants' possession. Thus, Defendant Smith's Discovery Request Number One should be
denied as moot.

Response to Defendant Smith's Discovery Request Number Two

The results of the internal investigation conducted by Flint into the illegal conduct of
Kenneth Rains, requested in Defendant Smith's Discovery Request Number Two (Mot. by Smith
for Disc. ¶ 4), is not in the possession, custody or control of the United States. To the United
States' knowledge, after Flint's investigator Jeff Short, an ex-police officer from Canada,
concluded his investigation he returned to Canada with his report, if indeed he made a report, and
any electronically recorded interviews. The United States has not seen any report of the internal
investigation, nor has it heard any electronically recorded interviews. To the United States'
knowledge, the information remains in Canada. Thus, Defendant Smith's Discovery Request
Number Two should be denied.

Response to Defendant Smith's Discovery Request Number Three

By means of Discovery Request Number Three (Mot. by Smith for Disc. ¶ 5), Defendant
Smith seeks information the United States has regarding pressure applied by the BP America
Houston office to end the one bidder relationship with Flint. To the extent that such information
exists in BP America documents in the possession, custody or control of the United States, copies
of those documents were provided to Defendants on April 25, 2007. The United States
interviewed numerous BP America employees regarding BP America's desire to switch from sole
source contracting to a competitive bid process in an effort to introduce competition into its
purchase of pipeline construction work and thereby, hopefully, reduce costs and/or increase
quality. That effort was thwarted by Defendants' bid rigging. Paralegal notes of the witness
interviews were produced to Defendants on March 22, 2007. Thus, Defendant Smith's Discovery
Request Number Three should be denied as moot.

Response to Defendant Smith's Discovery Request Number Four

Defendant Smith's Discovery Request Number Four (Mot. by Smith for Disc. ¶ 6) asks the
United States to disclose any interviews it had with Rains after Pat Kannard and Harley Temple
were interviewed by the United States. The United States did not interview Rains after it
conducted interviews of Kannard and Temple. Questions that arose from the interviews of
Kannard and Temple were directed to Rains' attorney. Based on information provided by Rains'
attorney, the United States believes that Rains denies the allegations made by Kannard and
Temple. Paralegal notes of the interviews with Kannard and Temple were produced to
Defendants on March 22, 2007. Thus, Defendant Smith's Discovery Request Number Four should
be denied.

Response to Defendant Smith's Discovery Request Number Five

Defendant Smith's Discovery Request Number Five (Mot. by Smith for Disc. ¶ 7) seeks
information in the possession of the United States regarding its investigation into illegal acts
involving Rains and Jesse Huntington. To the extent that such information is in the possession,
custody or control of the United States, it is to be found in documents, FBI 302s, and paralegal
interview notes of witnesses, including Rains, which have already been produced to Defendants.
Additionally, copies of the audit reports from Flint's internal investigation into Field Project Cost
Accounting operations in Farmington, New Mexico were produced to Defendants on April 25,
2007, and are listed in the Index to Miscellaneous Documents which was produced with the
documents on that date. Thus, Defendant Smith's Discovery Request Number Five should be
denied as moot.

Response to Defendant Smith's Discovery Request Number Six

Defendant Smith's Discovery Request Number Six (Mot. by Smith for Disc. ¶ 8) seeks a
copy of the tape recording Jeff Kramme made of Richard Putman on December 12, 2005. A copy
of this tape recording was produced to Defendants on April 25, 2007, and is listed in the Index to
Miscellaneous Documents which was produced with the recording on that date. Thus, Defendant
Smith's Discovery Request Number Six should be denied as moot.

Response to Defendant Smith's Discovery Request Number Seven

Defendant Smith's Discovery Request Number Seven (Mot. by Smith for Disc. ¶ 9) seeks
the results of the United States' investigation into allegations outlined by former Flint employee
Kristy Sikes. To the extent that information regarding these allegations is in the possession,
custody or control of the United States, it is to be found in documents, FBI 302s, and paralegal
interview notes of witnesses, including Sikes, which have already been produced to Defendants.
Additionally, copies of the audit reports from Flint's internal investigation into Field Project Cost
Accounting operations in Farmington, New Mexico were produced to Defendants on April 25,
2007, and are listed in the Index to Miscellaneous Documents which was produced with the
documents on that date. Thus, Defendant Smith's Discovery Request Number Seven should be
denied as moot.

Response to Defendant Smith's Discovery Request Number Eight

Defendant Smith's Discovery Request Number Eight (Mot. by Smith for Disc. ¶ 10) seeks
information in the possession of the United States as to why BP America employee Stan Page was
transferred from Durango, Colorado, to Texas. The United States interviewed Stan Page on
February 9, 2007. Paralegal notes of that interview were produced to the Defendants on March
22, 2007. Additional information, if any, may be found in documents, FBI 302s, and paralegal
interview notes of other witnesses which have already been produced to Defendants. Thus,
Defendant Smith's Discovery Request Number Eight should be denied as moot.

Response to Defendant Smith's Discovery Request Number Nine

Defendant Smith's Discovery Request Number Nine (Mot. by Smith for Disc. ¶ 11) seeks
information in the possession of the United States regarding the relationship between Rains and
Stan Page. The United States interviewed Stan Page on February 9, 2007. Paralegal notes of that
interview were produced to the Defendants on March 22, 2007. Additional information, if any,
may be found in documents, FBI 302s, and paralegal interview notes of other witnesses, including
Rains, which have already been produced to Defendants. Thus, Defendant Smith's Discovery
Request Number Nine should be denied as moot.

UNITED STATES' RESPONSE TO "DEFENDANT B&H'S REQUEST FOR
DISCOVERY"

Defendant B&H's Request for Documents Relating to the Internal
Investigation Conducted by Flint Energy Services, Inc. Should be
Denied

Defendant B&H requests that the United States produce all documents relating to the
internal investigation conducted by Flint of the alleged bid-rigging (B&H Mot. for Disc. ¶¶ 1-4
(Docket # 43)). This investigation is referred to in paralegal notes of interviews and FBI 302s
already produced to the Defendants. The details and results of the investigation are not in the
possession, custody or control of the United States. As was previously discussed in response to
Defendant Smith's Discovery Request Number Two, to the United States' knowledge, after Flint's
investigator Jeff Short, an ex-police officer from Canada, concluded his investigation he returned
to Canada with his report, if indeed he made a report, and any electronically recorded interviews.
The United States has not seen any report of the internal investigation, nor has it heard any
electronically recorded interviews. To the United States' knowledge, the information remains in
Canada. Thus, Defendant B&H's first discovery request should be denied.

Defendant B&H's Request for a Copy of the Fact Portions of the
Antitrust Division's Case Recommendation Memorandum Should be
Denied

Defendant B& H (B&H Mot. for Disc. ¶¶ 5-10) requests that United States produce its
case recommendation memorandum (citing to the Antitrust Division Manual, Chapter III, G.2.c.,
Recommending a Criminal Case) claiming, but without citing any legal support for its request,
that this United States' internal memorandum is discoverable pursuant to Federal Rule of Criminal
Procedure 16(a)(1)(E)(i), documents ". . . material to preparing the defense." In fact, Defendant
B&H's request is contrary to the provisions of Federal Rule of Criminal Procedure 16, and to
caselaw. Therefore, Defendant B&H's request for this United States' internal memorandum
should be denied.

Legal Argument as to Why Defendant B&H's Request for the Case
Recommendation Memorandum Should be Denied

Except as Rule 16(a)(1) provides otherwise,(7) this rule does not authorize the discovery or
inspection of reports, memoranda, or other internal government documents made by an
attorney for the government or other government agent in connection with investigating or
prosecuting the case.

This Rule is firmly grounded in the work product privilege. A parallel exemption for "reports,
memoranda, or other documents made by the defendant, or the defendant's attorney or agent,. . . "
is set out in Federal Rule of Criminal Procedure 16(b)(2)(A).

Sixty years ago, the Supreme Court set forth the work product doctrine in Hickman v.
Taylor, 329 U.S. 495 (1947), and it remains the law. In Hickman, the petitioner sought reports
and memoranda made by the attorney for the defendant. The Court denied the request, noting that
release of an attorney's note or memoranda would destroy his ability to prepare for a case:

In performing his various duties . . . it is essential that a lawyer work with a certain degree
of privacy, free from unnecessary intrusion by opposing parties and their counsel. . . .
That is the historical and the necessary way in which lawyers act within the framework of
our system of jurisprudence to promote justice and to protect their clients' interests.

Id. at 510-511.

In United States v. Nobles, 422 U.S. 225 (1975), the Court held that the work product
doctrine also applied in criminal cases.

Although the work-product doctrine most frequently is asserted as a bar to discovery in
civil litigation, its role in assuring the proper functioning of the criminal justice system is
even more vital. The interest of society and the accused in obtaining a fair and accurate
resolution of the question of guilt or innocence demand that adequate safeguards assure
the thorough preparation and presentation of each side of the case.

Id. at 238.

Defendants do not have "unlimited license to rummage in the files of the Department of
Justice." Alderman v. United States, 394 U.S. 165, 185 (1969). See alsoUnited States v.
Fernandez, 231 F.3d 1240, 1243 (9th Cir. 2000) ("the documents at issue were protected by the
deliberative process and work product privileges."); United States v. Safavian, 233 F.R.D. 12, 20
(D.D.C. 2005) ("[T]he internal deliberative processes of the Department of Justice . . . are
irrelevant to the preparation of a defense."); United States v. AzzarelliConstr. Co., 459 F. Supp.
146, 152 (E.D. Ill. 1978) ("Defendants are not entitled to disclosure of internal government
memoranda under Rule 16(a)(2).")

While Defendant B&H maintains it simply seeks the "facts" contained in the United States'
case recommendation, the facts have been disclosed to the Defendants in the discovery already
provided by the United States. The United States attorneys' understanding and organization of
those facts is what is to be found in the case recommendation. Indeed, paragraph seven of
Defendant B&H's Motion for Discovery (B&H Mot. for Disc. ¶ 7) discloses the Defendant's real
complaint: "the discovery contains no overarching memorandum that discloses the government's
understanding of the facts or theory of the alleged offenses." (emphasis added) That, the
Defendants are not entitled to.

The United States' case recommendation memorandum is exempt from disclosure under
Federal Rule of Criminal Procedure 16(a)(2). It falls within the "zone of privacy in which a
lawyer can prepare and develop legal theories and strategies 'with an eye toward litigation,' free
from unnecessary intrusion by his adversaries." In reGrand Jury Subpoenas Dated March 19,
2002 and August 2, 2002, 318 F.3d 379, 383-384 (2d Cir. 2002) (opinion filed 2003, decided
2002) (quoting United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998)). The Defendant is
looking for a road map of the United States' case, to which it is not entitled. Thus, Defendant
B&H's request for disclosure of the United States' case recommendation memorandum should be
denied.

CONCLUSION

Accordingly, for the reasons stated above, the Motion by Defendant Smith for Discovery
(Docket # 51) and Defendant B&H's Motion for Discovery (Docket #43) should be denied. The
United States has already provided generous discovery to the Defendants in this case and more
than complied with the requirements of Federal Rule of Criminal Procedure 16(a). Most of the
materials requested by Defendant Smith are already in his possession, and in the possession of the
other Defendants. In addition, both Defendant Smith and Defendant B&H have requested
material which is not in the possession, custody or control of the United States. Finally, the
United States' internal case recommendation requested by Defendant B&H is not subject to
disclosure pursuant to Federal Rule of Criminal Procedure 16(a)(2).

I hereby certify that on August 1, 2007 I electronically filed the foregoing United States'
Opposition to "Motion by Defendant Smith for Discovery" (Docket # 51) and "Defendant B&H's
Motion for Discovery" (Docket # 43) with the Clerk of the Court using the CM/ECF system
which will send notification of such filing to the following e-mail addresses:

gjohnson@hmflaw.com

hhaddon@hmflaw.com

pmackey@hmflaw.com

patrick-j-burke@msn.com

markjohnson297@hotmail.com

I hereby certify that I have mailed or served the document or paper to the following non
CM/ECF participants in the manner indicated by the non-participant's name:

1. Defendant B&H (B&H Mot. for Leave to Join (Docket # 52)) and Defendant Martin
(Martin Mot. for Leave to Join (Docket # 53)) have moved to join Motion by Defendant Smith
for Discovery. Defendant Martin (Martin Mot. to Join Mots. Filed by B&H (Docket #49)) has
moved to join Defendant B&H's Motion for Discovery. Should the Court grant those Motions to
join, this response would also apply to those Motions.

2. Flint, Defendants' corporate coconspirator, pled guilty to a criminal Information filed on
July 11, 2006 (United States v. Flint Energy Services, Inc; and Kenneth L. Rains, 06-CR-00264-PSF), and was sentenced to pay a $150,000 fine. Rains, the individual coconspirator, has also
pled guilty and is awaiting sentencing before Judge Blackburn.

3. On April 25, 2007, paralegal notes of the interviews of Smith and Martin were also
produced to Defendants.

4. Defendant B&H had retained copies of all the documents it produced to the United
States during the investigation and agreed to share those documents with its codefendants.

5. Before Defendant Smith set forth his numbered requests for discovery, he set forth a
"Statement of Facts." The "facts" stated by Defendant Smith are incorrect. BP America
documents, which have been produced to Defendants, show that Rockies Construction submitted
bids for BP America pipeline construction projects let by BP America's Durango, Colorado
branch from January 2005 until May 2005.

6. Copies of the documents produced to the United States pursuant to grand jury subpoenas
served upon Flint, the coconspirator, and BP America, the victim, as well as documents produced
by other companies and individuals have been produced to each of the three Defendants. B&H
has copies of the documents that it, and its parent, InfrastruX, produced during the investigation
and has agreed to share those documents with its codefendants. Federal Rule of Criminal
Procedure 16(a)(1)(E) only requires that the United States must permit the Defendants to inspect
the documents, and to copy them should they so choose. Here, the United States has done more
that what is required by Rule 16 and provided the copies to the Defendants.

7. Rule 16(a)(1)(F) requires the production of reports of physical or mental examinations
and scientific tests. Rule 16(a)(1)(G) requires the production of expert witness reports.